Citation Nr: 0806939
Decision Date: 02/29/08 Archive Date: 03/06/08
DOCKET NO. 04-38 295A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to a disability rating in excess of 30 percent
for service-connected chronic vascular headache syndrome.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The veteran had active service from December 1982 to March
1990.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a January 2004 rating decision of the St.
Petersburg, Florida, Regional Office (RO) which denied the
above claim.
In January 2008, the veteran testified at a video conference
hearing over which the undersigned Acting Veterans Law Judge
presided. A transcript of the hearing has been associated
with the veteran's claims file.
In January 2008, the Board granted the veteran's motion to
have his case advanced on the Board's docket.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the additional delay, it is
necessary to ensure that there is a complete record upon
which to decide the claim so that he is afforded every
possible consideration.
Initially, the Board notes that during the veteran's January
2008 video conference hearing, the veteran asserted that his
service-connected chronic vascular headache syndrome had
increased in severity since his last VA examination in
January 2004. VA is required to afford the veteran a
contemporaneous examination to assess the current nature,
extent, and severity of his chronic vascular headache
syndrome. See Palczewski v. Nicholson, 21 Vet. App. 174, 181
(2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see
also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).
Thus, the Board has no discretion and must remand this claim.
Additionally, during his January 2008 hearing, the veteran
indicated that he had been receiving private medical
treatment at a Homestead Outlet Clinic, at Kendall, in Miami,
Florida, and from a Dr. Damsky. Review of the veteran's
claims file reveals that the stated treatment records have
not been associated with the evidence of record. VA has a
duty to assist claimants in obtaining evidence needed to
substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West
2002 & Supp. 2007); 38 C.F.R. § 3.159(c) (2007). These
records should be obtained on remand.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall make arrangements to
obtain from the veteran specific
information as to treatment associated
with his chronic vascular headache
syndrome with care given by Dr. Damsky,
Homestead Outlet Clinic, and Kendall, to
include dates of treatment and any
appropriate authorization and consent
forms. All identified records should be
obtained and associated with the veteran's
claims file.
2. The RO/AMC should schedule the veteran
for an appropriate VA examination to
assess the nature, severity and frequency
of his headache syndrome. The claims
folder should be made available to and
reviewed by the examiner. All necessary
tests must be conducted. The examiner
must comment on the nature, frequency and
severity of the veteran's headaches, and
specifically address the frequency,
severity, and duration of any prostrating
attacks. An opinion should be provided as
to whether the veteran's headaches are
very frequent, completely prostrating, or
prolonged.
The examiner should also review pertinent
aspects of the veteran's medical and
employment history, and comment on the
effects of the service-connected chronic
vascular headache syndrome upon his
ordinary activity and the effect, if any,
on his current level of occupational
impairment. An opinion should be provided
concerning the impact of this disability
on the veteran's ability to work, to
include whether the disability is
productive of severe economic
inadaptability.
3. The RO/AMC will then readjudicate the
veteran's claim, to include consideration
of any additional evidence obtained as a
result of this Remand. In doing so, the
RO/AMC must specifically consider whether
the case should be forwarded to the Under
Secretary for Benefits, or the Director of
the Compensation and Pension Service, for
consideration of the assignment of an
extraschedular rating.
4. If the benefit sought on appeal
remains denied, the veteran and his
representative should be provided with a
Supplemental Statement of the Case
containing notice of all relevant actions
taken on the claim, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, the case is to be returned to the Board,
following applicable appellate procedure. The veteran need
take no action until he is so informed. He has the
right to submit additional evidence and argument on the
matter the Board has remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999). The purposes of this remand
are to obtain additional information and comply with all due
process considerations. No inference should be drawn
regarding the final disposition of this claim as a result of
this action.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).